Copyright: Its History and Its Law Part 3

The protection of musical compositions was in such confused and unsatisfactory condition that special legislation was necessary. The recent laws on this subject, described in detail in the chapter on dramatic and musical copyright, include the copyright (musical compositions) act of 1882 (45 & 46 Victoria, c. 40); the copyright (musical compositions) act of 1888 (51 & 52 Victoria, c. 17); the musical (summary proceedings) copyright act of 1902 (2 Edward VII, c.

15); and the musical copyright act of 1906 (6 Edward VII, c.

36),--following the report of the Musical Copyright Committee of 1904,--which successively met imperfections developed in applying the previous law.

{Sidenote: Committee report of 1909}

After the adoption of the revised international copyright convention signed at Berlin November 13, 1908, modifying the Berne-Paris conventions, a Committee on the law of copyright consisting of seventeen publicists, authors, artists, publishers and others was appointed by minute of March 9, 1909, by the President of the Board of Trade, to consider and report upon the modification of domestic legislation in conformity with the Berlin agreement of 1908. The Committee made a report in December, 1909, strongly advising that domestic legislation be brought into line with international practice and that the copyright term in Great Britain be for life and fifty years. With the report was printed a blue-book of minutes of evidence, containing valuable appendixes which included a _projet de loi type_ (model bill) on copyright, drafted by the International Literary and Artistic a.s.sociation, and an artistic copyright bill drafted by the Artistic Copyright Society.

{Sidenote: Imperial copyright conference of 1909}

In the early part of 1909 an Imperial copyright conference was also held in London, attended by Crown officials and representatives from all of the self-governing dominions, at which certain resolutions for copyright betterment were adopted. Its minutes and resolutions were also presented to Parliament.

{Sidenote: The pending bill}

As a result of the deliberations and reports of these two bodies, "a bill to amend and consolidate the law relating to copyright" (1 George V) was introduced into the House of Commons July 26, 1910, in the names of Mr. Buxton, Mr. Solicitor-General, Colonel Seely and Mr. Tennant, the adoption of which would provide a copyright code similar in extent to the American code of 1909, and applicable throughout the British dominions, with the proviso that the self-governing dominions may accept or modify the code or legislate separately, and providing also for international copyright. The bill adopted most of the features of the Berlin convention including the term of life and fifty years, covered literary, dramatic, musical and artistic works, including architectural works of art, and while distinguis.h.i.+ng between first publication and performance, included under copyright acoustic or visual performance or exhibition and control for mechanical reproduction. The bill, somewhat modified, was reintroduced into the subsequent Parliament March 30, 1911, emerged from committee with important alterations July 13, 1911, and was pa.s.sed with slight additional changes by the House of Commons August 17, and first read in the House of Lords August 18, 1911. On pa.s.sage of the House of Lords, it becomes effective July 1, 1912, unless earlier date is provided by Order in Council. The bill repeals by specific schedule all existing laws except specified sections in the fine arts copyright act of 1862, the musical copyright acts of 1902 and 1906, and the copyright provisions in the customs consolidation act of 1876 and the revenue act of 1889. The provisions of the new measure are specifically treated and summarized comprehensively in later chapters and the full text is given in the appendix.

{Sidenote: Design patents}

The bill does not, however, repeal the previous law as to copyright in designs, which had continued to receive consideration during the Victorian reign in laws, later than those cited, of 1858-1861, and thus finally became merged in the protection of patents. Thus "designs capable of being registered under the patents and designs act, 1907,"

are specifically excepted under clause 22 of the proposed copyright code.

{Sidenote: Common law rights}

It seems possible that, under the precedent of the acts of 1775 and 1801, the common law rights practically taken away by the statute of Anne and specifically abrogated by the proposed bill, could have been restored by legislation. These restrictions have not only ruled the practice of England ever since, but they were embodied in the Const.i.tution of the United States, and have influenced alike our legislators and our courts.

IV

THE HISTORY OF COPYRIGHT IN THE UNITED STATES

{Sidenote: Const.i.tutional provision}

The Const.i.tution of the United States authorized Congress "to promote the progress of science and useful arts by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries." Previous to its adoption, in 1787, the nation had no power to act, but on Madison's motion, Congress, in May, 1783, recommended the States to pa.s.s acts securing copyright for fourteen years.

{Sidenote: Early state legislation}

Connecticut in January, 1783, Ma.s.sachusetts in March, 1783, and Maryland in April, 1783, had already provided for copyright, twenty-one years being the usual period. New Jersey on May 27, 1783, and New Hamps.h.i.+re and Rhode Island in December of the same year, followed Madison's suggestion. Pennsylvania and South Carolina in March, 1784, Virginia and North Carolina in 1785, Georgia and New York in 1786, also pa.s.sed copyright acts, so that all the thirteen States except Vermont had separately provided for copyright,--thanks to the vigorous copyright crusade of Noah Webster, who traveled from capital to capital,--when the United States statute of 1790 made them unnecessary.

{Sidenote: The act of 1790}

This act followed the precedent of the English act of 1710, and gave to authors who were citizens or residents, their heirs and a.s.signs, copyright in books, maps and charts for fourteen years, with renewal for fourteen years more, if the author were living at expiration of the first term. A printed t.i.tle must be deposited before publication in the clerk's office of the local United States District Court; notice must be printed four times in a newspaper within two months after publication; a copy must be deposited with the United States Secretary of State within six months after publication; the penalties were forfeiture and a fine of fifty cents for each sheet found, half to go to the United States; a remedy was provided against unauthorized publication of ma.n.u.scripts.

{Sidenote: 1802-1867}

{Sidenote: The revised act of 1870}

{Sidenote: 1874-1882}

This original and fundamental act was followed by others--in 1802, requiring copyright record to be printed on or next the t.i.tle-page, and including designs, engravings and etchings; in 1819, giving United States Circuit Courts original jurisdiction in copyright cases; in 1831 (a consolidation of previous acts), including musical compositions, extending the term to twenty-eight years, with renewal for fourteen years to author, widow, or children, doing away with the newspaper notice except for renewals, and providing for the deposit of a copy with the district clerk (for transmission to the Secretary of State) within three months after publication; in 1834, requiring record of a.s.signment in the court of original entry; in 1846 (the act establis.h.i.+ng the Smithsonian Inst.i.tution), requiring one copy to be delivered to that, and one to the Library of Congress; in 1855, a postal provision for free mailing of deposits; in 1856, securing to dramatists the right of performance; in 1859, repealing the provision of 1846 for the deposit of copies, and making the Interior Department instead of the State Department the copyright custodian; in 1861, providing for appeal in all copyright cases to the Supreme Court; in 1865, including photographs and negatives, and again requiring deposit with the Library of Congress, within one month from publication; in 1867, providing $25 penalty for failure to deposit. This makes twelve acts bearing on copyright up to 1870, when a general act took the place of all, including "paintings, drawings, chromos, statues, statuary, and models or designs intended to be perfected as works of the fine arts." This did away with the local District Court system of registry, and made the Librarian of Congress the copyright officer, with whom printed t.i.tle must be filed before, and two copies deposited within ten days after, publication. In 1873-4 the copyright act was included in the Revised Statutes as sections 4948 to 4971 (also see secs. 629 and 699), and in 1874 an amendatory act made legal a short form of record, "Copyright, 18--, by A. B.," and relegated labels to the Patent Office. In 1879 the Post Office appropriation bill contained a proviso against the transmission of any publication which violates copyright; in 1882 an amendment dealt with the position of the copyright notice on moulded, decorative articles, etc.

{Sidenote: International copyright legislation, 1891}

In 1891 there was pa.s.sed, after a long campaign, the so-called international copyright act, extending copyright to the citizens of other nations in case of reciprocal grants by such nations, and providing that the copyright on books and certain other articles should be conditioned on manufacture in the United States. In 1893 an amendatory act gave the same effect to copies deposited "on or before publication." In 1895 the public doc.u.ments bill provided that no government publication should be copyrighted, and another bill imposed penalties in the case of infringement of photographs and of original works of art. In 1897 an act provided that unauthorized representation, wilful and for profit, of any dramatic or musical composition is a misdemeanor punishable by imprisonment; another act provided for the appointment of a Register of Copyrights under the direction and supervision of the Librarian of Congress; and a third act provided penalty for printing false claim of copyright and prohibited the importation of articles bearing a false claim of copyright. In 1904 provision was made for protection to exhibitors of foreign literary, artistic or musical works at the Louisiana Purchase Exposition. A bill of 1905 permitted _ad interim_ copyright for one year of books published abroad if registered here within thirty days publication and bearing notice of reservation.

{Sidenote: Private copyright acts}

A curious incident in American copyright legislation has been the pa.s.sage of private copyright acts, nine in all, of which the earliest in 1828, as amended in 1830 and 1843, continued the copyright of John Rowlett "in a useful book, called Rowlett's Tables of discount and interest" from its original publication in 1802 till 1858,--curiously the present period of fifty-six years. In 1849 the copyright of Levi H.

Corson in a perpetual calendar or almanac was renewed by special act. In 1854 an appropriation of $10,000 was made to Thomas H. Sumner for his new method of ascertaining a s.h.i.+p's position and the copyright was extinguished. In 1859 a special act gave to "Mistress Henry R.

Schoolcraft" and her heirs for fourteen years the right to republish her husband's work on the Indian tribes originally published by order of Congress and to make any abridgement thereof, and a similar special copyright was voted in 1866 for Herndon's "Exploration of the Amazon"

for his widow. An act of 1874 authorized the validation of William Tod Helmuth's work on surgery which had been imperfectly entered for copyright two years before, and a ninth private act in 1898 validated for like reason the copyright of Judson Jones in a work on orthoepy.

{Sidenote: American possessions}

In 1900 the act for the government of the territory of Hawaii repealed the Hawaiian copyright act of 1888 and extended United States copyright to Hawaii. In the same year the act providing temporary government for Porto Rico extended the copyright laws to that island. In 1904 the Attorney General rendered an opinion that Philippine authors were ent.i.tled to United States copyright but that the book must be manufactured within the United States. Hawaii, Porto Rico and the Philippine Islands, as well as Alaska, were later included by name in the jurisdiction of the code of 1909. American copyright was extended to the Ca.n.a.l Zone by War Department order in 1907.

{Sidenote: The American code of 1909}

Finally, in 1909, there was pa.s.sed the new copyright code repealing all previous legislation and providing comprehensively for the whole subject of copyright, literary, artistic, dramatic, musical, or other. Under this code copyright is effected by publication with the statutory notice of copyright and completed by registration of two deposit copies sent to the Copyright Office promptly after publication. The manufacturing clause is continued and extended to require printing and binding as well as type-setting within the United States. The musical author is given control over mechanical reproductions though under provision for compulsory license in case he permits any such reproduction. The copyright term is for twenty-eight years with a like renewal term, making fifty-six years. Rights of performance are included under copyright, and unpublished works are specifically protected by special registration. These are the salient features of the code which is stated and discussed in detail in succeeding chapters.

{Sidenote: State protection of playright}

In line with the dramatic act of 1897, the dramatic authors between 1895 and 1905 procured state legislation in the States of New Hamps.h.i.+re, New York, Louisiana, Oregon, Pennsylvania, Ohio, New Jersey, Ma.s.sachusetts, Minnesota, California, Wisconsin, Connecticut and Michigan, differing somewhat in form, to give effect to the federal copyright laws in respect to dramatic performance or to apply the principles of common law through the punishment of dramatic companies disregarding performing rights.

{Sidenote: Citations}

{Sidenote: Trade-Mark act}

Citations of all these laws will be found in Appendix A of the report of copyright legislation from the Register of Copyrights, included in the report of the Librarian of Congress for 1904; and the full text of the United States acts, except the later ones, are given in "Copyright Enactments 1783-1904" issued from the Copyright Office in 1905 as Bulletin No. 3, and in a second revised and enlarged edition, extending to 1906, reissued in 1906. The Trade-Mark act of February 20, 1905, supplemented by an act of May 4, 1906, covers the protection of labels, etc., excluded from copyright by the copyright act, and is given, with a list of trade-mark laws of foreign nations, and trade-mark treaties with them, rules, indexes, etc., in a Government publication, ent.i.tled "United States Statutes concerning the registry of trade-marks with the rules of the Patent Office relating thereto."

{Sidenote: Common law relations}

The act of 1790 received an interpretation, in 1834, in the case of Wheaton _v._ Peters (rival law reports), at the bar of the U. S. Supreme Court, which placed copyright in the United States exactly in the _status_ it held in England after the decision of the House of Lords in 1774. The court referred directly to that decision as the ruling precedent, and declared that by the statute of 1790 Congress did not affirm an existing right, but created a right. It stated also that there was no common law of the United States and that (English) common law as to copyright had not been adopted in Pennsylvania, where the case arose.

So late as 1880, in Putnam _v._ Pollard, claim was made that this ruling decision did not apply in New York, which, in its statute of 1786, expressly "provided, that nothing in this act shall extend to, affect, prejudice, or confirm the rights which any person may have to the printing or publis.h.i.+ng of any books or pamphlets at common law, in cases not mentioned in this act." But the N. Y. Supreme Court decided that the precedent of Wheaton _v._ Peters nevertheless held. During the discussion of the present copyright code, Edward Everett Hale consulted with other veteran authors whose early works were pa.s.sing out of copyright, with the intention of bringing a test case for the extension of copyright under common law after the expiration of the statutory period. But on proposing such a case to legal counsel he became a.s.sured that such a suit could not be maintained.

{Sidenote: Divided opinions}

As in the English case of Donaldson _v._ Becket, the decision in the American ruling case of Wheaton v. Peters came from a divided court. The opinion was handed down by Justice McLean, three other judges agreeing, Justices Thompson and Baldwin dissenting, a seventh judge being absent.

The opinions of the dissenting judges, given in Eaton S. Drone's "A treatise on the law of property in intellectual productions," const.i.tute one of the strongest statements ever made of natural rights in literary property, in opposition to the ruling that the right is solely the creature of the statute. "An author's right," says Justice Thompson, "ought to be esteemed an inviolable right established in sound reason and abstract morality." There seems, indeed, to be a sense of natural copyright among the American Indians; an Ojibwa brave will not sing the song belonging to another tribe or singer, and a Chippewa youth may learn his father's songs, on a customary gift of tobacco, but does not inherit the right to sing them.

V

SCOPE OF COPYRIGHT: RIGHTS AND EXTENT